Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Tuesday, December 08, 2009

Copyright Capitulation - Solution to Canada/US Trade Issues?

There was a very interesting international trade event on The Hill yesterday - very capably and even-handedly hosted by the Hon. Scott Brison, PC., M.P. Lots of MPs, Senators and trade policy types. Some very senior level speakers. Mr. Ignatieff was there listening and said a few words. The Right Honourable Joe Clark, former Prime Minister, was the main keynote lunch speaker and spoke eloquently about Canada-Africa trade, despite inexcusable bungling by the Hill technical people of his slide presentation. He was witty and wise.

She is also a sometimes controversial lobbyist, who worked for and now with Gordon Giffin, a former US Ambassador to Canada under the Clinton administration from 1997 to 2001.

The CABC is big on such issues as the “Buy American” controversy that is hurting so many Canadian SMEs, such as Hayward Gordon (a 57 year old pump technology company), whose President, John Hayward, spoke so eloquently yesterday.

Greenwood’s remarks unfolded like a slick Hollywood movie leading to an unstoppable, inevitable and unbelievable conclusion.

After a lot of very intelligent talk by her and others about the “Buy American” problem and the long history of Canada/US relations, she said that the solution is very simple.

You could feel the punch line coming when she was concluding her remarks just before questions were taken by indicating that she “loves linkages” (trade policy jargon for the linking of two often unrelated issues, which can result in the giving away of one sector’s interests to benefit another's).

Her conclusion was then a predictable climax, in which she actually came out and said that Canada could solve most if not all of its current trade problems with the USA - and particularly the “Buy American” issue - by simply “fixing copyright.” These problems would then be solved “tomorrow.”

Yep - the Canada/US file is now all about copyright, according to her. All we have to do is do what the US Government and the American lobbyists say. It doesn't matter how wrong the USA may be about “Buy American” and countless other trade irritations. Or even if the USA is the most flagrant scofflaw at the WTO in international copyright law.

So I asked a question - admittedly with something of a preface to set the context - about why Canada would even discuss copyright with the USA when:• the father of the American father of the DMCA, which is the model we are supposed to follow, (Bruce Lehman) has disowned it;• there was no evidence of serious counterfeiting and piracy in Canada and no basis for the 301 listing, other than that of a few lobbyists’ recycled back-of-the envelope musings;• the most obvious source of counterfeit and pirated goods are the street corners of midtown Manhattan; and,• above all why Canada would be discussing a secret treaty called ACTA that would make the border even more sticky and inefficient than it already is.

Mr. Robertson was the first to mention Canada's place on the US piracy list yesterday. He clearly didn't like my question, or the context setting remarks. Ms. Greenwood - to her credit - answered it, however briefly and unsatisfactorily. I didn’t get a follow up. Her answer was that Canada should fix its copyright law in the manner suggested by the USA because this would be better for Canada or words to that effect. Isn't it touching that American lobbyists are so concerned for the best interests of Canada?

Anyway, some influential folks were quite interested in my question and it clearly took many by surprise who were unaware of ACTA, its trade implications, the secrecy attached to it, and the general sensitivity of the copyright account.

Yesterday was clearly another example of US government and entertainment industry lobbying and policy laundering at its finest. Let us hope that some, at least, saw through it.

Above all, let’s not see Canadian competitiveness in education, commerce, research, and innovation traded away at all, much less with insufficient understanding of the real costs to Canada. Rest assured that certain lobbyists know the costs very well because they know what their clients stand to gain, which is why copyright is getting such persistent and well-funded treatment and has now risen to the number one issue up for “linkage” and trade-off. What these lobbyists want to win will result in a significant economic, political and diplomatic loss for Canada, and even further diminution of Canada's international prestige.

2 comments:

And here's a note about the connection between US trade policy and US IP protection from a US-based blog, citing TechDirt (so the US pushes the even smaller trading partners even more aggressively than it does Canada - of course boycotting sugar from Costa Rica also helps the Florida sugar growers that control most US policy toward Cuba among others:

For the last couple of days news has been trickling in about how the US is trying to ram IP laws down Costa Rica’s throat by blocking their access to the US sugar market. Techdirt has a good summary of the various commentaries and a related scoop in the Bahamas where the US is also applying IP pressure.“The first is in Costa Rica, which is included in the Central America Free Trade Agreement (CAFTA). Yet like with other free trade agreements that the US has agreed to elsewhere, this one includes draconian intellectual property law requirements. I still cannot understand why intellectual monopoly protectionism — the exact opposite of ‘free trade’ — gets included in free trade agreements. At least in Costa Rica, a lot of people started protesting these rules, pointing out that it would be harmful for the economy, for education and for healthcare. So the Costa Rican government has not moved forward with such laws. How has the US responded? It’s blocking access to the US market of Costa Rican sugar until Costa Rica approves new copyright laws.”